92 Decision Citation: BVA 92-25757
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-02 310 ) DATE
)
)
)
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for a permanent and total disability rating
for pension purposes.
REPRESENTATION
Appellant represented by: American Red Cross
ATTORNEY FOR THE BOARD
Thomas A. Pluta, Counsel
INTRODUCTION
The veteran was born in August 1930, and had active service
from September 1951 to October 1953. By rating action of
April 1989, the San Juan, Puerto Rico, Regional Office
(hereinafter RO) denied a permanent and total disability
rating for pension purposes. The veteran was notified of
the denial and of his appellate rights by letter of May
1989, but he did not file a timely appeal therefrom.
This matter came before the Board of Veterans' Appeals
(hereinafter the Board) on appeal from a February 1991
rating action whereby the RO denied entitlement to
nonservice-connected pension benefits. A notice of
disagreement was received in March 1991. A statement of the
case was issued in April 1991, and a substantive appeal was
received subsequently that month. A supplemental statement
of the case was issued in September 1991. The appeal was
received and docketed at the Board in March 1992. The
appellant has been represented throughout his appeal by the
American Red Cross.
REMAND
The VA has a duty to assist the veteran in the development
of facts pertinent to his claim. 38 U.S.C.A. § 5107(a)
(West 1991); 38 C.F.R. § 3.103(a) (1991). The United States
Court of Veterans Appeals (hereinafter the Court) has held
that the duty to assist the veteran in obtaining and
developing available facts and evidence to support his claim
includes obtaining medical records to which the veteran has
referred and obtaining adequate VA examinations. Littke v.
Derwinski, 1 Vet.App. 90 (1990). This duty includes
providing an additional VA examination by a specialist, when
recommended. Hyder V. Derwinski, 1 Vet.App. 221 (1991).
Moreover, the VA has a duty to acknowledge and consider all
regulations which are potentially applicable through the
assertions and issues raised in the record, and to explain
the reasons and bases for its conclusion. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991).
The Court has also held in Roberts v. Derwinski, 1 Vet. App.
387 (1992), that each disability in a pension case must be
assigned a percentage rating, that the RO should discuss the
diagnostic codes used in denying a claim, that a rating
decision may not be based on an examination which was
conducted before all relevant evidence was gathered, and
that the effect of pain on employability must be addressed.
In addition, in Brown v. Derwinski, 2 Vet. App. 444 (1991),
the Court held that a pension claim must be considered under
both the average person (38 U.S.C.A. § 1502(a) (West 1991);
38 C.F.R. § 4.15 (1991)) and the unemployability standards
(38 C.F.R. §§ 3.321, 4.17 (1991)). The instant claim is
deficient with respect to each of the points addressed above
in Roberts and Brown.
In Abernathy v. Derwinski, 2 Vet. App. 391 (1992), the Court
explicitly held that the Board should apply the analysis of
Manio v. Derwinski, 1 Vet.App. 140 (1991), to pension
claims. In this case, the Board most recently denied
nonservice-connected pension benefits by decision of January
1989, and the RO subsequently denied entitlement to that
benefit by rating action of April 1989. However, in rating
decision of February and August 1991, the RO failed to apply
the Manio analysis to the veteran's application to reopen
his pension claim. Under the circumstances of this case, we
are of the opinion that further development is required.
This case is REMANDED to the RO for the following:
1. Copies of all records of treatment of
the veteran at the VA Medical Center,
San Juan, Puerto Rico subsequent to April
1991, and at the "Caparia Terrace" Mental
Health Center (noted on VA Form 21-4138
dated May 13, 1991) should be secured by
the RO and associated with the claims
folder.
2. Thereafter, the veteran should be
afforded a VA general medical
examination, to include special
examinations in orthopedics, psychiatry,
ophthalmology, cardiology, and
endocrinology, to determine the nature
and extent of any disability present,
including a generalized anxiety disorder,
hypertension, diabetes mellitus,
bilateral cataracts, and a claimed
vertebral infection. The examiners
should review the entire claims folder
prior to the examinations. All indicated
tests should be conducted. Each examiner
should render an opinion as to what
effect the disabilities found have on the
veteran's ability to work, and state
whether the veteran's disabling
conditions are susceptible to improvement
through appropriate treatment. In
particular, the effect of pain upon
employability should be discussed. The
factors upon which the opinions are based
must be set forth.
3. When the requested developments have
been completed, the case should be
reviewed by the RO, and a rating decision
prepared which lists all the veteran's
disabilities and the percentage
evaluation assigned each disability. The
rating action should specifically apply
the analysis of Manio with respect to
finality of unappealed rating actions to
the veteran's current claim for pension.
If the decision remains adverse to the
appellant, he and his representative
should be furnished an appropriate
supplemental statement of the case which
includes a percentage rating for each
diagnosed disability; cites the
appropriate diagnostic codes and provides
a discussion of their applicability to
the veteran's disabilities; and discusses
the application of the two standards
(average person and unemployability under
38 U.S.C.A. § 1502(a); 38 C.F.R.
§§ 3.321, 4.15 and 4.17) by which a
permanent and total disability rating for
pension purposes may be assigned. The
appellant and his representative should
then be given an opportunity to respond.
Thereafter, subject to current appellate procedures, the
case should be returned to the Board. The veteran need take
no action until he is further informed.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
D. W. DATLOW, M.D. I. S. SHERMAN
C. W. SYMANSKI
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).